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Arrest — Search Incident to Arrest — “Protective Sweep” of Residence

State v. Edward Garrett, 2001 WI App 240, PFR filed
For Garrett: Michael P. Sessa

Issue:Whether entry into a closet, after defendant was arrested in his residence, was justified under the “protective sweep” doctrine.

Holding: Under Maryland v. Buie, 494 U.S. 325 (1990), the police may conduct a “protective sweep” of premises, incident arrest, of spaces immediately adjoining the place of arrest, or if they have reasonable belief the place harbors an individual posing a danger. ¶21. Here, the police entered a closet at least 32 feet from the place defendant was arrested; this is too far to be considered in the immediate vicinity. ¶24. However, the facts support the alternative basis for a sweep, reasonable belief:

¶27. The facts surrounding the instant case include: (1) the officers were investigating a drug transaction; (2) information consisting of people buying drugs from Garrett’s building suggested drug dealing was occurring; (3) the closet door was slightly ajar; (4) the closet was large enough to hide a person; (4) the suspect had just fled from the living room, where the closet was located; and (5) the space between the couch and the door was large enough for a person to gain access to the closet. Based on these facts, Detective Kaltenbrun testified that he had a reasonable suspicion that the closet harbored a dangerous individual. We conclude that the protective sweep of the closet was reasonable in that Detective Kaltenbrun could have reasonably believed that an individual was hiding in the closet, the search was narrowly confined to the closet where such an individual could be found, and the sweep was narrowly confined to a brief visual inspection of the closet.

Note, first, that the sweep followed a warrantless entry (under exigent circumstances rationale): there is a split of federal authority (and thus a potentially cert-worthy issue) on the question of whether Buie “authorize(s) protective sweeps even when officers have not entered a suspect’s home pursuant to an arrest warrant,” U.S. v. Gandia, 2nd Cir No. 04-6477-cr, 9/19/05 (collecting cases — the majority of which, including Leaf v. Shelnutt, 400 F.3d 1070, 1086-88 (7th Cir. 2005), favor expansion of Buie to warrantless situations); permutation: U.S. v. Miller, 2nd Cir No. 04-2637-cr, 11/16/05 (“an officer in a home under lawful process, such as an order permitting or directing the officer to enter for the purpose of protecting a third party, may conduct a protective sweep”). Garrett was a warrantless sweep, and thus supports placement of Wisconsin within the majority camp. However, Garrett’s brief simply did not raise this issue of authority to conduct the sweep, arguing simply instead that on the facts the police didn’t have cause to believe another person was present. The case therefore isn’t controlling — but an earlier case, State v. Walter Horngren, 2000 WI App 177, ¶20, 238 Wis.2d 347, 617 N.W.2d 508, did permit a sweep in a warrantless (indeed, non-arrest: community caretaker) entry. Still: the Wisconsin supreme court has never discussed authority to conduct a Buie sweep following warrantless entry; moreover, given the national split, the issue remains viable pending definitive resolution by the Supreme Court. Finally, authority to conduct a sweep following a warrantless, consenusual entry raises different considerations from those discussed by Garrett or Horngren, and likely isn’t controlled by them.

That threshold probelm aside, it might be wise to keep in mind that this doctrine is fact-intensive, and ought not support categorical rules, such as a “drug house” exception — see, e.g., U.S. v. Hauk, 10th Cir No. 04-3113, 6/24/05. That said, the protective sweep doctrine isn’t quite settled. There is, for one thing, authority for the idea, “that arrest is not always, orper se, an indispensable element of an in-home protective sweep,” U.S. v. Gould, 5th Cir. No. 02-30629 (en banc), 4/12/04:

Rather, the sweep in Buie was evaluated on a general Fourth Amendment reasonableness standard, and was justified, in reliance on the principles of Terry v. Ohio, 88 S.Ct. 1868 (1968), and Michigan v. Long, 103 S.Ct. 3469 (1983), where there was reasonable suspicion that the area swept harbored a person posing a danger to the officers present and the sweep was limited to a cursory inspection of places where a person may be found and lasted no longer than necessary to dispel the reasonable suspicion of danger nor longer than what it takes to complete the arrest and leave the house.

Wisconsin has similarly extended the protective sweep authority in at least one instance to a non-arrest context, entry based on community caretaker rationale, State v. Walter Horngren, 2000 WI App 177, ¶20, 238 Wis.2d 347, 617 N.W.2d 508. But it should be kept in mind that nationally it remains an open question just how far the protective sweep doctrine extends — see, e.g., U.S. v. Vargas, 2nd Cir. No. 03-1535, 7/16/04 (holding open question whether “a protective sweep under Buie is constitutional only when conducted in the course of arresting someone on the premises”; noting further that “whether Buieestablished such a bright-line rule is an issue upon which circuit courts have differed”; and collecting cases on both sides of split); U.S. Walker, 10th Cir No. 05-2287, 1/31/07 (10th Cir limits sweep of home as incident to arrest, as opposed to exigent circumstances related solely to officer safety; however, sweep can be justified in non-arrest situation by concerns for citizen safety).Note that the requirements of a sweep haven’t really been fleshed out in Wisconsin; Gould articulates these as follows:

First, it is at least implicit in Buie that although the protective sweep may extend to areas of the home where the police otherwise (i.e., apart from the protective sweep doctrine) then have no right to go, nevertheless when undertaken from within the home, the police must not have entered (or remained in) the home illegally and their presence within it must be for a legitimate law enforcement purpose.Further, the protective sweep must be supported “by a reasonable, articulable suspicion”, Buie at 1099, “that the area to be swept harbors an individual posing a danger to” those on the scene. Id. at 1100.

Next, the legitimate protective sweep may not be “a full search” but may be no more than “a cursory inspection of those spaces where a person may be found.” Id. at 1099.

Finally, the sweep is subject to two time limitations. First, it may “last[] no longer than is necessary to dispel the reasonable suspicion of danger,” id.; and, second, it may last no longer than the police are justified in remaining on the premises. See id. (“and in any event no longer than it takes to complete the arrest and depart the premises”); see also id. at 1098 (police permitted “to take reasonable steps to ensure their safety after, and while making, the arrest”).

And, when there has been a sweep not preceded by arrest, “the government [is] obligated to establish specific and articulable facts that warranted the agents’ belief that there was someone hiding … who posed a danger to them,” Vargas. See also U.S. v. Waldner, 8th Cir No. 04-3415, 10/10/05: courts which have extended the protective sweep doctrine do so “only under the second prong of Buie, which requires a showing of a reasonable suspicion of dangerous individuals in the house. [Cites]” (refusing to permit sweep, in absence of reasonable suspicion of dangerous individuals in house, in non-arrest situation involving service of domestic violence protective order). Similarly, Horngren, ¶21, the community caretaker case, seems to require for a cursory inspection sweep a reasonable belief by the police that someone on the premises posed a danger to them or to herself.

A separate problem: Does the protective-sweep doctrine limited to in-home detention (and frisk), or does it authorize such action immediately outside a home in which an arrest is effected? According to U.S. v. Maddox, 10th Cir. No. 03-2311, 11/15/04, “the officer-safety interests at issue in Buie” attach to the area immediately outside the home, and therefore “the same reasonableness test employed in Buie for the protective sweep of the broader arrest area applies to this protective detention.” (But: the facts in that case are fairly extreme; the court’s analysis, not to say result itself, seems more a straightforward application of Terryitself than its permutation in Buie.) More recent authority suggests growing support for the idea that a Buie sweep extends to “an arrest made just outside of the home” given, that is, “sufficient facts” in favor of a potential threat coming from inside the home, U.S. v. Lawlor, 1st Cir No. 04-2044, 4/27/05; U.S. v. Paopao, 9th Cir No. 05-10653, 10/10/06.


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